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I wanted to take a moment and bring to the attention of my readers an article that was published in the October, 2004 issue of Arizona Attorney, but still relevant today. The article, titled “Suggestions, Not Demands – Rethinking Living Wills,” was written by Kenney Hegland, who feels one of the inherent problems with living wills is the attempt to make decisions today that may not be implemented for a number of years. That is, deciding now what one will want then.
He states studies show that living wills have little impact on the medical treatment one actually receives at the end of their life, and that doctors usually do what family members want, despite what the patient may have indicated in their living will. However, he doesn’t see this as a problem as he feels living wills are too casual, vague, and speculative to be taken seriously, mainly due to the fact that many living wills are of the “check the box” type.
He brings up a number of excellent points; a worthwhile read.
Suggestions, Not Demands - Rethinking Living Wills
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Friday, October 1, 2010
Lawyers On Call - Free Legal Advice for Arizonans
On October 5, 2010, the topic for Lawyers On Call will be Estate Planning. See the State Bar of Arizona website for more information.
State Bar of Arizona
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State Bar of Arizona
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Friday, August 13, 2010
Lawyers On Call - Free Legal Advice for Arizonans
On September 7, 2010, the topic for Lawyers On Call will be Divorce and Child Support. See the State Bar of Arizona web site for more information.
State Bar of Arizona
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State Bar of Arizona
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Wednesday, July 21, 2010
Lawyers On Call - Free Legal Advice for Arizonans
On August 3, 2010, the topic for Lawyers On Call will be Employment Law and Wrongful Termination. See the State Bar of Arizona web site for more information.
State Bar of Arizona
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State Bar of Arizona
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Saturday, June 19, 2010
The Availability of Summary Administration for Small Estates in Arizona
Temporarily removed for editing.
Saturday, June 5, 2010
Lawyers On Call - Free Legal Advice For Arizonans
On July 6, 2010, the topic for Lawyers on Call will be foreclosures and evictions. See the State Bar of Arizona web site for more information.
State Bar of Arizona
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State Bar of Arizona
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Thursday, April 22, 2010
Serving as a Personal Representative in Arizona - Duties and Responsibilities
A good amount of thought and care should go into the decision of who to name as one’s personal representative, and a number of factors should be considered. The position is one of trust, and the person who serves as personal representative will shoulder a number of responsibilities as he or she is the person who will take care of a person’s affairs once they die. The person named as personal representative should be competent, responsible, and possess the ability to be objective and fair-mined. In cases where a person has already named someone as their agent in a General Durable Power of Attorney, it’s a good idea to name the same person as personal representative of their estate.
The personal representative will be named in the decedent’s Will. If the decedent died intestate (meaning he or she left no Will), then his or her spouse has the right to be named personal representative. If the decedent was not married at the time of his or her death, then any of his or her heirs is entitled to be appointed personal representative, provided that all the other heirs renounce or waive their right to be appointed personal representative.
The general duties of a personal representative are set forth in A.R.S. 14-3703. It’s important to note that a personal representative is a fiduciary who shall observe the standards of care applicable to trustees, which are set forth in the Arizona Trust Code, and include the duty to administer the trust in good faith, the duty of loyalty to the beneficiaries, the duty of impartiality, and the duty to minimize costs and expenses to be borne by the estate. A personal representative owes duties of undivided loyalty, fairness, and impartiality to the creditors and beneficiaries of the decedent’s estate. He or she must be cautious and prudent in dealing with estate assets.
Arizona law allows for both Supervised Administration and Unsupervised Administration probate procedures. During a Supervised Administration, the personal representative is not only responsible to all interested parties, but also to the Court. (Athough not responsible to the Court during an Unsupervised Administration, the personal representative has the same basic duties and responsibilities as during a Supervised Administration.)
The Court will issue an “Order to Personal Representative and Acknowledgement and Information to Heirs” setting forth the duties and responsibilities of serving as a personal representative, which include, but are not limited to, the duty to gather and control all assets that belonged to the decedent at the time of his her death and, after any valid debts and expenses are paid, the duty to distribute any remaining assets to the beneficiaries; within thirty days after appointment, the personal representative must mail notice of said appointment to the heirs and devisees whose addresses are reasonably available to him or her; within thirty days of the admission of the Will to informal probate, the personal representative must give written notice to all heirs and devisees of the admission of the Will to probate, together with a copy of the Will; heirs must be given notification that they have four months to contest the probate (by commencing a formal testacy proceeding); within ten days of appointment, mail a copy of the “Order to Personal Representative and Acknowledgement and Information to Heirs” to all the heirs and devisees of the estate, along with any other persons who have filed a demand for notice; file proof of compliance with the court; publish a notice once a week for three consecutive weeks in a newspaper of general circulation announcing the appointment as personal representative and informing creditors that their claims must be filed within a certain time period; immediately find, identify, and take possession of the estate assets and make proper arrangements to protect them; determine statutory allowances; prepare an inventory of the decedent’s probate assets and their values as of the date of death; keep detailed records of all receipts and expenses of the estate; pay valid debts and expenses; pay taxes; distribute the remaining assets; notify the court of changes of address; determine what is a reasonable compensation for serving as personal representative; and close the estate.
Disclaimer
The personal representative will be named in the decedent’s Will. If the decedent died intestate (meaning he or she left no Will), then his or her spouse has the right to be named personal representative. If the decedent was not married at the time of his or her death, then any of his or her heirs is entitled to be appointed personal representative, provided that all the other heirs renounce or waive their right to be appointed personal representative.
The general duties of a personal representative are set forth in A.R.S. 14-3703. It’s important to note that a personal representative is a fiduciary who shall observe the standards of care applicable to trustees, which are set forth in the Arizona Trust Code, and include the duty to administer the trust in good faith, the duty of loyalty to the beneficiaries, the duty of impartiality, and the duty to minimize costs and expenses to be borne by the estate. A personal representative owes duties of undivided loyalty, fairness, and impartiality to the creditors and beneficiaries of the decedent’s estate. He or she must be cautious and prudent in dealing with estate assets.
Arizona law allows for both Supervised Administration and Unsupervised Administration probate procedures. During a Supervised Administration, the personal representative is not only responsible to all interested parties, but also to the Court. (Athough not responsible to the Court during an Unsupervised Administration, the personal representative has the same basic duties and responsibilities as during a Supervised Administration.)
The Court will issue an “Order to Personal Representative and Acknowledgement and Information to Heirs” setting forth the duties and responsibilities of serving as a personal representative, which include, but are not limited to, the duty to gather and control all assets that belonged to the decedent at the time of his her death and, after any valid debts and expenses are paid, the duty to distribute any remaining assets to the beneficiaries; within thirty days after appointment, the personal representative must mail notice of said appointment to the heirs and devisees whose addresses are reasonably available to him or her; within thirty days of the admission of the Will to informal probate, the personal representative must give written notice to all heirs and devisees of the admission of the Will to probate, together with a copy of the Will; heirs must be given notification that they have four months to contest the probate (by commencing a formal testacy proceeding); within ten days of appointment, mail a copy of the “Order to Personal Representative and Acknowledgement and Information to Heirs” to all the heirs and devisees of the estate, along with any other persons who have filed a demand for notice; file proof of compliance with the court; publish a notice once a week for three consecutive weeks in a newspaper of general circulation announcing the appointment as personal representative and informing creditors that their claims must be filed within a certain time period; immediately find, identify, and take possession of the estate assets and make proper arrangements to protect them; determine statutory allowances; prepare an inventory of the decedent’s probate assets and their values as of the date of death; keep detailed records of all receipts and expenses of the estate; pay valid debts and expenses; pay taxes; distribute the remaining assets; notify the court of changes of address; determine what is a reasonable compensation for serving as personal representative; and close the estate.
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Wednesday, April 21, 2010
Lawyers On Call - Free Legal Advice for Arizonans
On May 4, 2010, the topic for Lawyers on Call will be immigration law. See the State Bar of Arizona web site for more information.
State Bar of Arizona
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State Bar of Arizona
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Sunday, March 7, 2010
Arizona Health Care Power of Attorney
A type of health care directive, a Health Care Power of Attorney is a written designation of an agent to make health care decisions when the person executing the power of attorney is unable to do so. In many cases, a spouse is the natural choice for selection as a health care agent. A son or daughter may also be a wise choice in some situations. It’s wise to name a back-up agent should your first choice be unable to serve for any reason. A Health Care Power of Attorney goes beyond the provisions of a Living Will and provides for health care decisions that are not addressed by a Living Will, which basically covers “end of life” decisions. The appointment of a person to act as an agent is effective until that authority is revoked by the principal or by court order. The document must contain language that clearly indicates the principal’s intent to create a Health Care Power of Attorney, be dated and signed by the principal, and notarized or witnessed in writing by at least one adult who affirms that the notary or witness was present at the time of execution of the Health Care Power of Attorney, and that the principal was of sound mind and free of duress at the time of execution of the Health Care Power of Attorney. A notary or witness shall not be a person designated to make medical decisions on the principal’s behalf, or a person directly involved with the provision of health care to the principal at the time the health care power of attorney is executed. If the Health Care Power of Attorney is witnessed by only one person, that person may not be related to the principal by blood, marriage, or adoption, and may not be entitled to any part of the principal's estate by will or operation of law at the time the Health Care Power of Attorney is executed.
An Agent’s Authorities, Responsibilities, and Immunity
Pursuant to Arizona law, the person appointed as the agent is not responsible for paying the principal’s health care costs unless the agent is otherwise required to do so. The agent must make health care decisions in accordance with the principal’s wishes, and if the Health Care Power of Attorney does not provide sufficient information to determine what the principal would want in any given circumstance, the agent is required to make decisions based on the principal’s values. If named as a health care agent, it’s important to have a conversation with the person executing the Health Care Power of Attorney to gain a good understanding of how they would make their own health care decisions if they were able to do so. An agent who makes good faith health care decisions for a patient is not subject to civil or criminal liability for those decisions.
Responsibilities of Health Care Providers
A person’s health care provider is required to comply with the health care decisions made by that person’s agent unless the health care provider knows that those decisions are inconsistent with the patient’s health care directive, or the health care provider has transferred care to another health care provider. A health care provider who makes good faith health care decisions in reliance on the provisions of an apparently genuine Health Care Power of Attorney or the direction of their patient’s agent is immune from criminal and civil liability. A health care provider who refuses to comply with a decision or a directive must promptly make known their unwillingness and promptly transfer the responsibility for the patient’s care to a health care provider who is willing to act in accordance with the agent’s direction.
Disclaimer
An Agent’s Authorities, Responsibilities, and Immunity
Pursuant to Arizona law, the person appointed as the agent is not responsible for paying the principal’s health care costs unless the agent is otherwise required to do so. The agent must make health care decisions in accordance with the principal’s wishes, and if the Health Care Power of Attorney does not provide sufficient information to determine what the principal would want in any given circumstance, the agent is required to make decisions based on the principal’s values. If named as a health care agent, it’s important to have a conversation with the person executing the Health Care Power of Attorney to gain a good understanding of how they would make their own health care decisions if they were able to do so. An agent who makes good faith health care decisions for a patient is not subject to civil or criminal liability for those decisions.
Responsibilities of Health Care Providers
A person’s health care provider is required to comply with the health care decisions made by that person’s agent unless the health care provider knows that those decisions are inconsistent with the patient’s health care directive, or the health care provider has transferred care to another health care provider. A health care provider who makes good faith health care decisions in reliance on the provisions of an apparently genuine Health Care Power of Attorney or the direction of their patient’s agent is immune from criminal and civil liability. A health care provider who refuses to comply with a decision or a directive must promptly make known their unwillingness and promptly transfer the responsibility for the patient’s care to a health care provider who is willing to act in accordance with the agent’s direction.
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Friday, March 5, 2010
Lawyers On Call - Free Legal Advice for Arizonans
On April 6, 2010, the topic for Lawyers On Call will be personal injury. See the State Bar of Arizona web site for more information.
State Bar of Arizona
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State Bar of Arizona
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Tuesday, February 23, 2010
Transferring a Motor Vehicle by Non-Probate Affidavit in Arizona
Pursuant to Arizona Revised Statute 14-3971(D), the Motor Vehicle Division shall transfer title of a motor vehicle from the decedent to the successor or successors on presentation of an affidavit stating that thirty days has passed since the decedent’s death, and either (1) an application or petition for the appointment of a personal representative is not pending and a personal representative has not been appointed in any jurisdiction and the value of all personal property in the decedent’s estate is less than $50,000 as valued as of the date of death or (2) the personal representative has been discharged or more than one year has passed since a closing statement has been filed and the value of all personal property in the decedent’s estate is less than $50,000 as valued as of the date of the affidavit. In addition, the claiming successor must be entitled to the vehicle.
To make the transfer, you will need to turn in the certificate of title to the Motor Vehicle Division along with a certified copy of the decedent’s death certificate, Title and Registration Application form, and the Non-Probate Affidavit for Obtaining Title to the Vehicle of an Arizona Decedent which can be found here
A.R.S. 14-3971
Disclaimer
To make the transfer, you will need to turn in the certificate of title to the Motor Vehicle Division along with a certified copy of the decedent’s death certificate, Title and Registration Application form, and the Non-Probate Affidavit for Obtaining Title to the Vehicle of an Arizona Decedent which can be found here
A.R.S. 14-3971
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Saturday, February 20, 2010
Estate Planning Attorney Francis X. Morrissey, Jr. Has Been Disbarred
Photo Credit: daylife
On January 6, 2010, I wrote about Anthony D. Marshall, son of Brooke Astor, and his sentence of 1 - 3 years in prison for defrauding his mother as she suffered from Alzheimers. A co-defendant, Francis X. Morrissey, Jr., a lawyer who did estate planning for Mrs. Astor, was also convicted of a series of fraud and conspiracy charges, as well as one count of forging Mrs. Astor’s signature on an amendment to her will. That blog entry can be read in its entirety here
By operation of law, Francis X. Morrissey, Jr. (pictured above) has now been disbarred.
Matter of Morrissey
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Thursday, February 11, 2010
Types of Wills Recognized by the State of Arizona
The Arizona Code recognizes holographic wills, attested wills, and self-proved wills. To be valid, a will must comply with the execution formalities of either a holographic will or an attested will. A holographic will does not require witnessing, but it must be signed by the testator, and the material provisions (which would include the identity of the testator's property and the beneficiaries chosen to receive that property) must be in the testator's handwriting.
An attested will must be in writing and signed by the testator and at least two witnesses. The will does not have to be signed by the testator in the presence of the witnesses, and the witnesses do not have to sign in the presence of the testator or each other. However, the testator must then tell the witnesses that the signature on the document is, indeed, the testator's or that the document constitutes the testator's will.
Most attorneys continue to execute an attested will with greater formality by having the testator sign in the presence of two witnesses, who then sign the will in the testator's presence at his or her request, and in the presence of each other. This helps prevent any question about the validity of the will if it must be probated in another state.
The advantage of a self-proved will is most evident in the event of a will contest. Formalities of execution are conclusively presumed if a self-proved will is contested in a formal testacy proceeding. An attested will may be self-proved either at the time of the original execution or later. Regardless of when an attested will is made self-proved, the process involves an acknowledgment by the testator and affidavit of the witnesses before a notary public. There are statutory requirements regarding the content of the language that must be included at the end of the will if it is to be self-proved.
Disclaimer
An attested will must be in writing and signed by the testator and at least two witnesses. The will does not have to be signed by the testator in the presence of the witnesses, and the witnesses do not have to sign in the presence of the testator or each other. However, the testator must then tell the witnesses that the signature on the document is, indeed, the testator's or that the document constitutes the testator's will.
Most attorneys continue to execute an attested will with greater formality by having the testator sign in the presence of two witnesses, who then sign the will in the testator's presence at his or her request, and in the presence of each other. This helps prevent any question about the validity of the will if it must be probated in another state.
The advantage of a self-proved will is most evident in the event of a will contest. Formalities of execution are conclusively presumed if a self-proved will is contested in a formal testacy proceeding. An attested will may be self-proved either at the time of the original execution or later. Regardless of when an attested will is made self-proved, the process involves an acknowledgment by the testator and affidavit of the witnesses before a notary public. There are statutory requirements regarding the content of the language that must be included at the end of the will if it is to be self-proved.
Disclaimer
Arizona Homestead Allowance, Exempt Property Allowance, and Family Allowance
Under Arizona law, if the decedent was domiciled in Arizona, the surviving spouse can claim a Homestead Allowance in the amount of $18,000. If there is no surviving spouse, each minor child and each dependent child is entitled to an equal share of the $18,000. The surviving spouse is also entitled to an Exempt Property Allowance in the amount of $7,000. If there is no surviving spouse, each minor child and each dependent child are entitled jointly to the $7,000. Finally, a surviving spouse, as well as minor and dependent children, are entitled to a Family Allowance, which is a "reasonable allowance" for maintenance during the period of administration. Similar to owning a share in community property, this protects against disinheritance by the testator since they are rights conferred by statute. In addition, because these allowances take precedence over creditors' claims except expenses of administration, they can protect the family of the deceased against creditors.
Disclaimer
Disclaimer
Monday, February 8, 2010
Lawyers On Call - Free Legal Advice for Arizonans
On March 2, 2010, the topic for Lawyers On Call will be tax law. See the State Bar of Arizona web site for more information.
State Bar of Arizona
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State Bar of Arizona
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Friday, January 29, 2010
Does Arizona Impose a State Estate Tax?
The quick answer to this question is no, the State of Arizona does not impose a state estate tax.
Before the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), every state in the United States imposed a state estate tax that, at a minimum, collected the amount of tax allowed as a credit for state death taxes by the federal government. EGTRRA radically changed the state estate tax regimes by eliminating the credit for estates of decedents dying after January 1, 2005.
The federal credit for state death taxes was a revenue-sharing arrangement between the federal government and the states. Because the amount of the credit was paid in tax (it was paid to the state to the extent the state imposed a state death tax equal to or in excess of the credit, or it was paid to the federal government as a part of the federal tax to the extent it was not paid to the state), the states enacted what is called a “pick-up” or “sponge” tax to pick up the portion of the estate tax that could be imposed on the state’s resident decedents without increasing the estate tax burden. The overall estate tax bill was neither increased nor decreased due to the pick-up tax; the tax bill was apportioned between the Internal Revenue Service and the state taxing authority. This was a popular approach as it required only a few sentences in the statute books, permitted the state revenue officials to rely on the federal audits of returns, and meant that the state death taxes were being taken out of monies that would have otherwise gone to the federal government.
In response to the changes in federal law (EGTRRA) that repealed the federal state death tax credit, some states have enacted laws that allow the state to continue to collect a state estate tax. Arizona, however, no longer imposes a state estate tax for decedents dying after January 1, 2005.
From Publication 900 - “Since the federal state death tax credit was the basis of the Arizona estate tax, Arizona effectively no longer had an estate tax after the federal repeal. Following the federal repeal, the Arizona legislature repealed the Arizona estate tax provisions (Laws 2006, Ch. 262, Section 3). Additionally, Arizona does not impose an inheritance or gift tax.”
Publication 900
Senate Bill 1170
Disclaimer
Before the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), every state in the United States imposed a state estate tax that, at a minimum, collected the amount of tax allowed as a credit for state death taxes by the federal government. EGTRRA radically changed the state estate tax regimes by eliminating the credit for estates of decedents dying after January 1, 2005.
The federal credit for state death taxes was a revenue-sharing arrangement between the federal government and the states. Because the amount of the credit was paid in tax (it was paid to the state to the extent the state imposed a state death tax equal to or in excess of the credit, or it was paid to the federal government as a part of the federal tax to the extent it was not paid to the state), the states enacted what is called a “pick-up” or “sponge” tax to pick up the portion of the estate tax that could be imposed on the state’s resident decedents without increasing the estate tax burden. The overall estate tax bill was neither increased nor decreased due to the pick-up tax; the tax bill was apportioned between the Internal Revenue Service and the state taxing authority. This was a popular approach as it required only a few sentences in the statute books, permitted the state revenue officials to rely on the federal audits of returns, and meant that the state death taxes were being taken out of monies that would have otherwise gone to the federal government.
In response to the changes in federal law (EGTRRA) that repealed the federal state death tax credit, some states have enacted laws that allow the state to continue to collect a state estate tax. Arizona, however, no longer imposes a state estate tax for decedents dying after January 1, 2005.
From Publication 900 - “Since the federal state death tax credit was the basis of the Arizona estate tax, Arizona effectively no longer had an estate tax after the federal repeal. Following the federal repeal, the Arizona legislature repealed the Arizona estate tax provisions (Laws 2006, Ch. 262, Section 3). Additionally, Arizona does not impose an inheritance or gift tax.”
Publication 900
Senate Bill 1170
Disclaimer
Tuesday, January 26, 2010
Fingerprinting Procedure for Non-Relative Seeking Appointment as Guardian of a Minor
In my previous post, I wrote about the requirement of a background check for non-relatives seeking appointment of guardianship of a minor, which includes fingerprinting. In this entry, I offer practical advice on the fingerprinting procedure.
1. The proposed guardian is to report to one of the following offices to be fingerprinted.
Maricopa County Sheriff's Department in Phoenix at 101 W. Jefferson Avenue. (Enter the East Court Building. The Sheriff's Office is directly across from the cafeteria.) Fingerprinting at this location is done on Mondays, Tuesdays, and Thursdays, from 9:00 a.m. to 2:00 p.m. The fee is $8.00 per card, and the card is provided for guardianship's only.
Phoneix Police Department, 620 W. Washington. Fingerprinting at this location is done on Monday - Friday, from 7:30 a.m. to 4:30 p.m. The fee is $6.00 per card, and the card is provided.
Preferred Info Services, 54 S. Center Street, Mesa. Fingerprinting at this location is done on Monday - Friday, from 8:30 a.m. to 4:30 p.m. The fee is $10.00 per card, and the card is provided.
NOTE: Your fingerprints must be submitted on a BLUE fingerprinted card.
2. Tell the clerk taking your prints that you need to be fingerprinted to be appointed guardian of a minor.
3. The cost of processing each fingerprint card is $24.00 payable by certified check, money order, attorney's check, cash (exact amount required), or personal check with return address and picture identification. Make your check/money order payable to the Maricopa County Treasurer. After the prints are taken, deliver the fingerprint card, your $24.00 check /money order for each fingerprint card, and a copy of your Petition for Appointment and Affidavit to Probate Court Administration, located on the first floor of the Old Courthouse, 125 W. Washington, Phoenix, where you will be assisted in completing the necessary information on the card.
4. A calendar clerk will schedule a hearing date at least eight weeks away, due to the length of time needed for both the Arizona Department of Public Safety and the Federal Bureau of Investigation in Washington, D.C. to complete a background check on the prints and return them by mail.
5. Be sure to leave the "Employer and Address" and "Reason Fingerprinted" section blank. Court Administration will complete these areas.
Disclaimer
1. The proposed guardian is to report to one of the following offices to be fingerprinted.
Maricopa County Sheriff's Department in Phoenix at 101 W. Jefferson Avenue. (Enter the East Court Building. The Sheriff's Office is directly across from the cafeteria.) Fingerprinting at this location is done on Mondays, Tuesdays, and Thursdays, from 9:00 a.m. to 2:00 p.m. The fee is $8.00 per card, and the card is provided for guardianship's only.
Phoneix Police Department, 620 W. Washington. Fingerprinting at this location is done on Monday - Friday, from 7:30 a.m. to 4:30 p.m. The fee is $6.00 per card, and the card is provided.
Preferred Info Services, 54 S. Center Street, Mesa. Fingerprinting at this location is done on Monday - Friday, from 8:30 a.m. to 4:30 p.m. The fee is $10.00 per card, and the card is provided.
NOTE: Your fingerprints must be submitted on a BLUE fingerprinted card.
2. Tell the clerk taking your prints that you need to be fingerprinted to be appointed guardian of a minor.
3. The cost of processing each fingerprint card is $24.00 payable by certified check, money order, attorney's check, cash (exact amount required), or personal check with return address and picture identification. Make your check/money order payable to the Maricopa County Treasurer. After the prints are taken, deliver the fingerprint card, your $24.00 check /money order for each fingerprint card, and a copy of your Petition for Appointment and Affidavit to Probate Court Administration, located on the first floor of the Old Courthouse, 125 W. Washington, Phoenix, where you will be assisted in completing the necessary information on the card.
4. A calendar clerk will schedule a hearing date at least eight weeks away, due to the length of time needed for both the Arizona Department of Public Safety and the Federal Bureau of Investigation in Washington, D.C. to complete a background check on the prints and return them by mail.
5. Be sure to leave the "Employer and Address" and "Reason Fingerprinted" section blank. Court Administration will complete these areas.
Disclaimer
Background Check Required for Non-Relative Seeking Appointment as Guardian of a Minor
Pursuant to A.R.S. 14-5206.B., "[b]efore the court may appoint as guardian a person unrelated to the minor, the court shall, in order to determine the applicant's suitability as a guardian, require the potential guardian to furnish a full set of fingerprints to the court to enable a criminal background investigation to be conducted."
The person who wishes to be named guardian must undergo a criminal background investigation before the hearing on the petition to appoint a guardian. The court or clerk will forward the background check application, fingerprint card, inventory sheet, and processing fee directly to the Arizona Department of Public Safety, which conducts criminal history records checks pursuant to A.R.S. 41-1750 and applicable federal law, and is authorized to submit fingerprint card information to the Federal Bureau of Investigation for a national criminal history records check.
Upon completion of the background check, the Department of Public Safety then forwards the results to the court before appointment of a non-relative as a guardian for a minor occurs. The background check may take six to eight weeks to complete once the Department of Public Safety has received the paperwork from the court or clerk.
In most counties, the clerk's office is charged with the responsibility of distributing the fingerprint cards and instructions for fingerprinting to applicants for appointment as guardian. In Maricopa County, the Probate Court Administrator's Office handles the fingerprinting process.
In my next entry, I'll offer some practical advice regarding the fingerprinting procedure.
Disclaimer
The person who wishes to be named guardian must undergo a criminal background investigation before the hearing on the petition to appoint a guardian. The court or clerk will forward the background check application, fingerprint card, inventory sheet, and processing fee directly to the Arizona Department of Public Safety, which conducts criminal history records checks pursuant to A.R.S. 41-1750 and applicable federal law, and is authorized to submit fingerprint card information to the Federal Bureau of Investigation for a national criminal history records check.
Upon completion of the background check, the Department of Public Safety then forwards the results to the court before appointment of a non-relative as a guardian for a minor occurs. The background check may take six to eight weeks to complete once the Department of Public Safety has received the paperwork from the court or clerk.
In most counties, the clerk's office is charged with the responsibility of distributing the fingerprint cards and instructions for fingerprinting to applicants for appointment as guardian. In Maricopa County, the Probate Court Administrator's Office handles the fingerprinting process.
In my next entry, I'll offer some practical advice regarding the fingerprinting procedure.
Disclaimer
Thursday, January 14, 2010
Arizona's Beneficiary Deed
An ideal tool for those with a modest-sized estate in which the residence is the primary estate asset, the beneficiary deed is similar to payable on death accounts in that it allows for the transfer of real estate on the death of the owner to whomever the owner designates as beneficiary, thereby avoiding probate.
Pursuant to A.R.S. 33-405, a beneficiary deed is “[a] deed that conveys an interest in real property, including any debt secured by a lien on real property, to a grantee beneficiary designated by the owner and that expressly states that the deed is effective on the death of the owner transfers the interest to the designated grantee beneficiary effective on the death of the owner subject to all conveyances, assignments, contracts, mortgages, deeds of trust, liens, security pledges and other encumbrances made by the owner or to which the owner was subject during the owner's lifetime.”
In addition, the statute allows for multiple beneficiaries who may take title in any recognized form, and may designate a successor grantee beneficiary, which should be indicated in the event a beneficiary predeceases the owner of the property. A beneficiary deed may also be used to transfer an interest in real property to the trustee of a trust, even if the trust is revocable.
ADVANTAGES
A beneficiary deed allows for the avoidance of probate. Arizona allows for the transfer of real estate by affidavit, however, pursuant to statute the value of all the real property in the estate, less liens and encumbrances as of the date of the decedent’s death, cannot exceed $75,000. The use of a beneficiary deed to transfer real property will avoid the need for a probate proceeding in cases where the equity in the property is in excess of $75,000.
A beneficiary deed does not carry with it the disadvantages associated with adding someone as a joint tenant. Many aging parents are using the technique of adding their adult child or children as joint tenants to avoid a probate proceeding upon their death. However, this can result in unintended tax and other consequences. Should their child become involved in a lawsuit (divorce, tort action, or bankruptcy), the property on which that child’s name has been added is subject to those proceedings.
A beneficiary deed is easily revoked. A beneficiary deed is easily revoked by the owner, or if there is more than one owner by any of the owners who executed the beneficiary deed, by executing and recording the revocation as provided by law in the office of the county recorder in the county in which the property is located.
A beneficiary deed is an effective tool for transferring property in the case of unmarried couples. An unmarried couple does not enjoy the benefits a married couple does in the event the relationship ends, and it’s often difficult to determine the property rights of those involved. Particularly in cases where property has been purchased solely with the assets of one party, it might be more appropriate to place one’s partner on the deed as a beneficiary rather than a co-owner.
DISADVANTAGES
In the case of joint owners, the surviving owner can defeat the purpose of the beneficiary deed. In cases where there are joint owners of property, and they have executed and recorded a beneficiary deed, upon the death of the first joint owner to die, the surviving owner can revoke the beneficiary deed. It’s for this reason that the use of a beneficiary deed might be problematic for couples with prior marriages and children from those prior marriages, as there is no provision in the statue for an irrevocable beneficiary designation.
There is the possibility of conflict in the event multiple beneficiaries are named. In cases where multiple beneficiaries are named, there is the potential for disagreement as to how the property should be managed and whether the property should be kept in the first place or, alternatively, sold. The use of a revocable living trust might be the better alternative to manage these issues.
There are issues with the use of a beneficiary deed when leaving property to minor children. Due to the numerous issues involved with leaving assets to minor children, a child’s trust (either testamentary or living) should be named as the beneficiary of the beneficiary deed.
There are possible estate tax issues when using a beneficiary deed to transfer property on one’s death. Using a beneficiary deed to transfer property on one’s death precludes the use of the property to fund a credit shelter trust, because the property does not pass into the trust until the death of the surviving spouse.
Although extremely popular and an effective estate planning tool in some situations, due to the drawbacks, the use of a beneficiary deed is not recommended for every estate plan, and the advantages and disadvantages of using a beneficiary deed should be considered carefully before executing and recording one as part of one’s estate plan.
A.R.S. 33-405
Disclaimer
Pursuant to A.R.S. 33-405, a beneficiary deed is “[a] deed that conveys an interest in real property, including any debt secured by a lien on real property, to a grantee beneficiary designated by the owner and that expressly states that the deed is effective on the death of the owner transfers the interest to the designated grantee beneficiary effective on the death of the owner subject to all conveyances, assignments, contracts, mortgages, deeds of trust, liens, security pledges and other encumbrances made by the owner or to which the owner was subject during the owner's lifetime.”
In addition, the statute allows for multiple beneficiaries who may take title in any recognized form, and may designate a successor grantee beneficiary, which should be indicated in the event a beneficiary predeceases the owner of the property. A beneficiary deed may also be used to transfer an interest in real property to the trustee of a trust, even if the trust is revocable.
ADVANTAGES
A beneficiary deed allows for the avoidance of probate. Arizona allows for the transfer of real estate by affidavit, however, pursuant to statute the value of all the real property in the estate, less liens and encumbrances as of the date of the decedent’s death, cannot exceed $75,000. The use of a beneficiary deed to transfer real property will avoid the need for a probate proceeding in cases where the equity in the property is in excess of $75,000.
A beneficiary deed does not carry with it the disadvantages associated with adding someone as a joint tenant. Many aging parents are using the technique of adding their adult child or children as joint tenants to avoid a probate proceeding upon their death. However, this can result in unintended tax and other consequences. Should their child become involved in a lawsuit (divorce, tort action, or bankruptcy), the property on which that child’s name has been added is subject to those proceedings.
A beneficiary deed is easily revoked. A beneficiary deed is easily revoked by the owner, or if there is more than one owner by any of the owners who executed the beneficiary deed, by executing and recording the revocation as provided by law in the office of the county recorder in the county in which the property is located.
A beneficiary deed is an effective tool for transferring property in the case of unmarried couples. An unmarried couple does not enjoy the benefits a married couple does in the event the relationship ends, and it’s often difficult to determine the property rights of those involved. Particularly in cases where property has been purchased solely with the assets of one party, it might be more appropriate to place one’s partner on the deed as a beneficiary rather than a co-owner.
DISADVANTAGES
In the case of joint owners, the surviving owner can defeat the purpose of the beneficiary deed. In cases where there are joint owners of property, and they have executed and recorded a beneficiary deed, upon the death of the first joint owner to die, the surviving owner can revoke the beneficiary deed. It’s for this reason that the use of a beneficiary deed might be problematic for couples with prior marriages and children from those prior marriages, as there is no provision in the statue for an irrevocable beneficiary designation.
There is the possibility of conflict in the event multiple beneficiaries are named. In cases where multiple beneficiaries are named, there is the potential for disagreement as to how the property should be managed and whether the property should be kept in the first place or, alternatively, sold. The use of a revocable living trust might be the better alternative to manage these issues.
There are issues with the use of a beneficiary deed when leaving property to minor children. Due to the numerous issues involved with leaving assets to minor children, a child’s trust (either testamentary or living) should be named as the beneficiary of the beneficiary deed.
There are possible estate tax issues when using a beneficiary deed to transfer property on one’s death. Using a beneficiary deed to transfer property on one’s death precludes the use of the property to fund a credit shelter trust, because the property does not pass into the trust until the death of the surviving spouse.
Although extremely popular and an effective estate planning tool in some situations, due to the drawbacks, the use of a beneficiary deed is not recommended for every estate plan, and the advantages and disadvantages of using a beneficiary deed should be considered carefully before executing and recording one as part of one’s estate plan.
A.R.S. 33-405
Disclaimer
Thursday, January 7, 2010
Lawyers On Call - Free Legal Advice for Arizonans
On February 2, 2010, the topic for Lawyers On Call will be credit resolution problems. See the State Bar of Arizona web site for more information.
State Bar of Arizona
Disclaimer
State Bar of Arizona
Disclaimer
Wednesday, January 6, 2010
Brooke Astor’s Son Found Guilty – Sentenced to 1 – 3 Years in Prison
Brooke Astor’s only son, Anthony D. Marshall, was sentenced on December 21, 2009, to one to three years in prison for defrauding his mother, stealing millions of dollars from her as she suffered from Alzheimers. (A co-defendant, Francis X. Morrissey Jr., a lawyer who did estate planning for Mrs. Astor, was also convicted of a series of fraud and conspiracy charges, as well as one count of forging Mrs. Astor’s signature on an amendment to her will.)
Credit: The New York Times
In addition to the legal issues involved, this story caught my attention due to my interest in the transatlantic liners of the early to mid-1900s. On April 14, 1912, the R.M.S. Titanic struck an iceberg in the middle of the North Atlantic and subsequently foundered on April 15, 1912 at approximately 2:20 a.m., sinking to the bottom of the ocean and taking over 1,500 souls with her.
One of the many people to die in the sinking was John Jacob Astor IV. After assisting his young, pregnant wife Madelaine into a lifeboat, Mr. Astor stood back with the other men while the other women and children entered the lifeboats, which was customary back then.
John Jacob Astor IV Credit: Picture History
Madelaine Astor Credit: Titanic-Titanic
It was Vincent Astor, son of John Jacob Astor IV, and married to Brooke Astor at the time of his somewhat sudden death of a heart attack on February 3, 1959, who brought his father's body back to New York (his body was recovered from the Atlantic after the sinking) and presided at his funeral after the sinking. In 1948, Vincent set up the Vincent Astor Foundation and, upon his death, half of his $130 million estate went to the Foundation which his widow, Brooke, was to administer.
Over the course of her life, Brooke Astor carried out her husband's wishes, donating over $200 million to various charities during her lifetime. Although, unfortunately, her good work might be overshadowed by the recent events involving her estate, this classy lady can rest in peace knowing she carried out her late husband's wishes.
Brooke Astor Credit: Fox News
On a bit of a side note, Vincent left his half-brother, Jack, nothing. The child with whom Madelaine Astor was pregnant while on the Titanic and, in my opinion, unintentionally disinherited, is, ironically, the one responsible (he left a son and grandson when he died in July of 1992) for carrying on the Astor name in the United States. I find it a bit interesting that Vincent left him nothing, as he had to have known that his father would have wanted to provide for him and, although it's my understanding that Vincent didn't like him (his half-brother) much and didn't respect his choices in life, it's interesting that he didn't do the right thing, so to say.
Credit: The New York Times
In addition to the legal issues involved, this story caught my attention due to my interest in the transatlantic liners of the early to mid-1900s. On April 14, 1912, the R.M.S. Titanic struck an iceberg in the middle of the North Atlantic and subsequently foundered on April 15, 1912 at approximately 2:20 a.m., sinking to the bottom of the ocean and taking over 1,500 souls with her.
One of the many people to die in the sinking was John Jacob Astor IV. After assisting his young, pregnant wife Madelaine into a lifeboat, Mr. Astor stood back with the other men while the other women and children entered the lifeboats, which was customary back then.
John Jacob Astor IV Credit: Picture History
Madelaine Astor Credit: Titanic-Titanic
It was Vincent Astor, son of John Jacob Astor IV, and married to Brooke Astor at the time of his somewhat sudden death of a heart attack on February 3, 1959, who brought his father's body back to New York (his body was recovered from the Atlantic after the sinking) and presided at his funeral after the sinking. In 1948, Vincent set up the Vincent Astor Foundation and, upon his death, half of his $130 million estate went to the Foundation which his widow, Brooke, was to administer.
Over the course of her life, Brooke Astor carried out her husband's wishes, donating over $200 million to various charities during her lifetime. Although, unfortunately, her good work might be overshadowed by the recent events involving her estate, this classy lady can rest in peace knowing she carried out her late husband's wishes.
Brooke Astor Credit: Fox News
On a bit of a side note, Vincent left his half-brother, Jack, nothing. The child with whom Madelaine Astor was pregnant while on the Titanic and, in my opinion, unintentionally disinherited, is, ironically, the one responsible (he left a son and grandson when he died in July of 1992) for carrying on the Astor name in the United States. I find it a bit interesting that Vincent left him nothing, as he had to have known that his father would have wanted to provide for him and, although it's my understanding that Vincent didn't like him (his half-brother) much and didn't respect his choices in life, it's interesting that he didn't do the right thing, so to say.
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